Grouped Hits on the Second Amendment

by Barry Loberfeld

How to interpret the Second Amendment -- a question raised anew by the March 9 ruling by the U.S. Court of Appeals for the D.C. Circuit, which many believe may prompt a High Court review -- is a subset of how to interpret any provision of the Constitution. Happily, one of the Federalist Founders themselves, Alexander Hamilton, provided a very handy guide:

[W]hatever may have been the intention of the framers of a constitution, or of a law, that intention is to be sought for in the instrument itself, according to the usual and established rules of construction. Nothing is more common than for laws to express and effect, more or less than was intended.

So, what does a given clause mean? Exactly what it says.

And what does the Second Amendment say? Verbatim, this:

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

Why is there such controversy over so brief a passage? It's really no mystery. Liberals look at the amendment and read nothing but:

A well regulated Militia [is] necessary to the security of a free State[.]

Their conservative counterparts, in contrast, see only:

[T]he right of the people to keep and bear Arms, shall not be infringed.

Now the question is, why is there such dissonance over the amendment? Again, a simple answer: Both camps cannot see the two clauses because both are unable to meaningfully connect them. Which of course leads to the next question: Can it be done?

Indeed, yes. Here's one way:

A well regulated [popular] Militia, being necessary to the security of a free State, the right of the [populace] to keep and bear Arms, shall not be infringed.

And an even simpler one:

A well regulated [people's] Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

To put it in the barest terms: The misinterpretation of the Second Amendment rests on the semantic misconceptions 1) that the stated "Militia" is purely a government body, and 2) that "the people" refers -- not to U.S. citizens, "the people" of this country (as it does everywhere else in the Bill of Rights) -- but to that body. Robert J. Cottrol offers one of the best responses to these fallacies:

Little in the way of historical evidence or even the rulings of the Supreme Court supports the view that the framers of the Second Amendment simply meant to protect state militias without also securing the right of the people at large to have arms. Certainly an organization like the modern [i.e., established-in-1903] National Guard, whose members are recruited, trained, paid, armed and otherwise equipped and deployed around the world by the federal government, is not the militia-of-the-whole envisioned by [James] Madison.... It is instead a super-select militia. To claim, as some have, that the Second Amendment was meant to protect a body like the National Guard, is to severely misread the historical record in ways so fundamental as to warrant almost instant dismissal.

But an even better one comes from Madison himself, who, in a discussion of "the militia," spoke of "the advantage of being armed, which the Americans possess over the people of almost every other nation" -- and contrasted that with "the military establishments in the several kingdoms of Europe," whose "governments are afraid to trust the people with arms." If "the people" denotes merely government soldiers, what does any of this mean? Similarly, Hamilton, in an explicit consideration of armed resistance, projected that "the people," if "their rights are invaded by either" the state governments or the "General Government," could ally with one against the other. Again, what does that mean if "the people" -- or the only "Militia" -- is just a state army? Lexicographer Noah Webster, in his 1787 "An Examination into the Leading Principles of the Federal Constitution," wrote:

Before a standing army can rule, the people must be disarmed, as they are in almost every kingdom in Europe. The supreme power in America cannot enforce unjust laws by the sword, because the whole body of the people are armed, and constitute a force superior to any band of regular troops that can be, on any pretence, raised in the United States.

And as the Federal Farmer concluded: "A militia, when properly formed, are in fact the people themselves...."

The Second Amendment exists to prevent the federal government from disarming, not the state governments, but the American people. The "Militia" is, at root, an armed citizenry, not an army of the state governments. True, it could fight with those governments under certain conditions: Madison, mirroring Hamilton, posits such a role should the federal government ever turn tyrannical. But we must never confuse its various roles (including defense against invasion) with its established identity, which is today still reflected in part by the "unorganized militia" clause of the U.S. Code.

*****

Those who argue that the Second Amendment recognizes only a right of the state governments to form their own armies have had to struggle with what "the instrument itself" says: "the right of the people to keep and bear Arms." Their solution, remarkably, is to contend that the "people" who have a right under the Second Amendment are not the same "people" -- namely, individual citizens ("natural persons," in legalese) -- who have rights under the First, Fourth, and Ninth Amendments. Rather, the Second Amendment refers to a "collective" -- and thus to a "collective right."

This schizophrenic construction almost by definition has no integrity. An attempt to provide some measure -- by extending the "collective right" reading beyond the Second Amendment -- has been made in recent times by University of Tulsa law professor Paul Finkelman:

Consider, for example, the term "people" in the First Amendment -- "Congress shall make no law ... prohibiting ... the right of the people peaceably to assemble." If it is hard to construe the word "people" in the Fourth Amendment to be anything but a reference to individuals, it is equally difficult to construe the term in the First Amendment as anything but a collective right. Clearly, the idea of the people assembling contemplates a large number of people and not a single person assembling.

And all this means -- what? That an "assembly," like a state army (i.e., their "Militia"), is a government-controlled unit of select persons? That "the people" can assemble only when, with whom, and for what reason as determined by the legislature? Extending this to another First Amendment clause, does it mean people-as-a-collective may form a church (a "religion"), but no one individual has a right to his own personal theological convictions?

The right of assembly is a right of the individual -- each and every individual ("the people") -- to assemble with those who'll consent to join him. The problem comes from the notion that a "collective" is something other than a collection of individuals, and it only gets worse when we are told that "the people" means this "collective," which is then construed to mean the state governments. For the integrity of the debate, let us acknowledge that those who believe the Second Amendment grants a right to American citizens are advocating the "civil rights" theory, while those who contend the enumerated right belongs to only the state governments are advocating what cannot be called anything but the "states' rights" theory.

*****

Nothing is more likely to (justly) infuriate a liberal than an assertion of the specious theory, which in recent years has gained support among conservatives (e.g., recently defeated Senator Rick Santorum of Pennsylvania), that the "original intent" of the First Amendment's no-establishment clause was to preserve the right of the state governments to establish their own churches. "Congress shall make no law respecting an establishment of religion" -- so that the state legislatures can. Along those lines, we may conclude that the "intent" of the free-exercise clause was to prevent federal interference in the state burning of heretics. The purpose of the Eighth Amendment? No doubt to safeguard the right of the state governments to erect their own torture chambers. And of course, the purpose of the Second Amendment is to allow those governments to form their own armies and even disarm the people if they so decide -- a point where our liberal finds himself in perverse agreement with a hated premise.

Let there be no doubt: The Bill of Rights is not a charter of the rights of state churches, state armies, and state torture chambers -- and none of its ratification proponents ever championed it as such. It is a charter of the rights of American citizens -- against the power of the federal government. The weak reed of this "states' rights" theory is the fact that the Constitution did not secure these rights for citizens against the power of the state governments, a defect that Madison recognized and tried to remedy with an amendment (which he thought the "most valuable") affirming "No state shall violate the equal rights of conscience" and other liberties. Sadly, it was never adopted, and incorporation -- the application of the Bill of Rights to the state governments -- was not achieved until the Fourteenth Amendment, whose "privileges or immunities" clause was stated by its author, Congressman John Bingham of Ohio, to effect precisely that end. (See Michael Kent Curtis' No State Shall Abridge: The Fourteenth Amendment and the Bill of Rights.)

The question now: Who are the greater knaves of our time -- liberals who embrace incorporation except for the Second Amendment or conservatives who reject incorporation, except for the Second Amendment?

*****

President Thomas Jefferson's 1802 letter to the Danbury Baptist Association has always been celebrated by civil libertarians for its construing of the First Amendment's religion clauses as "building a wall of separation between Church and State." This broad and generous reading by the author of the Declaration of Independence is seen as a support by those who believe in an America founded upon the natural rights of the individual -- and as a hurdle by those with authoritarian designs. A stupefying example of the latter is The Myth of Separation's David Barton, who tried to deform the letter's influence by actually inserting statements (for instance, that "Christian principles" must guide the government) that nowhere appear in it. (When exposed, Barton removed the fabricated quote from subsequent editions.)

But now here's the challenge: Would our pro-Jefferson civil libertarians (e.g., Americans United for the Separation of Church and State, the ACLU) accept that the Second Amendment may well have its own "Danbury letter" in Jefferson's 1787 correspondence to William S. Smith? The Sage of Monticello wrote, "And what country can preserve its liberties, if the rulers are not warned from time to time that this people preserve the spirit of resistance? Let them take up arms. The tree of liberty must be refreshed from time to time with the blood of patriots and tyrants." There you have it. Every point of the so-called "insurrectionist" interpretation of the Second Amendment is present and accounted for: Private citizens have a natural right to keep and bear arms as a check on the rise of despotism.

So why is the Danbury letter considered indispensable to our understanding of the First Amendment, while the Smith letter is dismissed as irrelevant to our understanding of the Second? Why don't our civil libertarians speak of -- and defend -- the Second Amendment's right to "take up arms"? Fundamentally, is or isn't Jefferson the Rosetta stone of our inalienable rights and their codification in the Constitution? Or has he become, much like that Constitution, suitable only when he serves our ends?

*****

It is often asked how the (misleadingly dubbed) "insurrectionist" interpretation of the Second Amendment can be reconciled with the Constitution's damnation of treason. The short answer is that there is no contradiction between the Constitution's prohibition of aggression against its own order of freedom and its defense of the right of Americans to retain the means to resist tyranny, e.g., a coup (i.e., what the Founders termed an "insurrection") against that order -- or the corruption thereof. Hamilton: "If the representatives of the people betray their constituents, there is then no resource left but in the exertion of that original right of self-defence, which is paramount to all positive forms of government...." In 1833, Justice Joseph Story, in his Commentaries on the Constitution of the United States, wrote that the "right of the citizens to keep and bear arms ... offers a strong moral check against the usurpation and arbitrary power of rulers" -- and actually bemoaned that the "American people" were not doing enough to maintain citizen militias. It is impossible to imagine his approving the contemporary condemnation of such militias.

Are such sentiments only a reflection of the classical liberalism of a bygone era? Consider this: "The right of citizens to bear arms is just one more guarantee against arbitrary government, one more safeguard against the tyranny which now appears remote in America, but which historically has proved to be always possible." It was said in 1959 -- by Senator Hubert Humphrey, the archetypical "modern liberal." But his statement is most profound not in light of its history, but its future.

In the Jonesboro, Louisiana of 1964, a black man realized that in addition to Klan terrorists, there was another danger: the police, whose inaction effectively aided them. He soon organized the Deacons for Defense and Justice, who armed themselves to meet any threat. By 1965, there were over twenty chapters in several Southern states. The Deacons offer the best example of what citizen militias can provide when the constitutional order breaks down, and it is an example that can be examined fully in 2004's The Deacons for Defense: Armed Resistance in the Civil Rights Movement by Lance Hill.

It is neither irony nor accident that the same interpretation of the Second Amendment can be labeled both "insurrectionist" (i.e., liberationist) and "civil rights." That's something to bear in mind when considering, among other things, 1) the history of Southern gun "control" laws that aimed at keeping blacks totally disarmed, and 2) Carl Bogus' ax-grinding fabrication that the purpose of the Second Amendment was "to assure the Southern states that Congress would not undermine the slave system by using its newly acquired constitutional authority over the militia to disarm the state militia [i.e., armed patrol gangs in the South] and thereby destroy the South's principal instrument of slave control." The Hill book should be mandatory reading for whom we might call today's postmodern liberals, who have as much disdain for Humphrey's support for the right to bear arms as they do for his opposition to racial quotas. But an acceptable substitute would be a viewing of the 2003 film of the same title, which starred a gifted but underappreciated actor named Forest Whitaker.

*****

The Second Amendment is often undermined by those who style themselves its most fervent upholders.

On their cable series BULL****!, the libertarian magicians/comedians Penn & Teller offered the most confused interpretation yet of the Founders' "original intent." The first clause is read as indeed establishing an army for each state government -- its "Militia" -- while the second is read as indeed securing the right of citizens to keep and bear arms -- against the power of the state government and the threat of that "Militia." At this point there should be no difficulty recognizing the absurdities of this theory, which is about as authentic as the actor they had portraying General Washington. Essentially, it's nothing more than a jigsaw of pieces taken from different puzzles.

The conservative who proclaims himself "pro-Second Amendment" elicits only the same response as a self-designated "pro-Second Commandment Christian": What about the other nine? Can the conservative who mocks others as "hiding behind" the First (or Fourth or whichever) Amendment himself find refuge from the gun prohibitionists in the Second? Does he imagine he can level the Bill of Rights but leave the Second Amendment standing? How can one who repudiates the importance of the other amendments then justify the importance of the Second, whose raison d’ętre is the defense of those amendments? The answer: He is utterly oblivious to his own incoherence and hypocrisy. Thus, Ann Coulter fumes that if liberal judges "interpreted the Second Amendment the way they interpret the First Amendment, we'd have a right to bear nuclear arms by now." And what exactly does that deserve -- other than a rim shot? This: If conservatives "interpreted the Second Amendment the way they interpret the First Amendment," even the National Guard wouldn't have guns.

As numerous as are the sins of Robert Bork, hypocrisy isn't one of them. Canonized as a conservative martyr, he has in fact never been a "judicial activist" for that movement. No, he reserved his activist role for his own majoritarian ideology, which he has never compromised. Alas, having failed to convince anyone else that Rousseau wrote the Constitution, Bork now advocates an amendment that would allow a congressional "super-majority" to vacate Supreme Court decisions -- by any measure, a stunning testament to his commitment to the "original intent" of the Framers.

And his views on their Second Amendment? 1) There is "no individual right to own a firearm." Why? Because "the Supreme Court has consistently ruled" so -- and who is Robert Bork to question precedent? (Actually, who is Robert Bork to ever find an individual right in the Bill of Rights?) In point of fact, there is no such Court history, as noted by Cottrol above. 2) The amendment exists to protect only state armies -- precisely the "states' rights" theory that, to quote Cottrol again, misreads "the historical record in ways so fundamental as to warrant almost instant dismissal." 3) Bork dismisses the very idea that firearms in the hands of citizens could still serve to ably fight tyranny. As Samuel Francis directly responded: "[T]ell that to the Afghan resistance, the Nicaraguan contras, and indeed the Vietcong, the Sandinistas, and a dozen other guerrilla groups that have laid their local leviathans low with weapons no more advanced than what we can keep in the carport." 4) The "National Rifle Association is to the Second Amendment and the right to bear arms" what the "ACLU is to the First Amendment" -- a comparison not intended as a compliment.

Had Judge Bork actually become Justice Bork, "pro-Second Amendment" conservatives would have learned soon enough that their support for him was not a mere miss, but a backfire.

*****

Constitutional integrity demands that we treat the Second Amendment the way we treat the others. The First Amendment's religion clauses do not give a citizen the right to deny his child medical care, stone homosexuals, or bomb infidels as part of a personal jihad -- to toss out only the most obvious examples. It is without question that the Second Amendment must be interpreted in the same context, which is: There is no right to violate the rights of others.

Recommended Reading

An indispensable collection of historical documents and scholarly debates can be found in 1994's Gun Control and the Constitution: Sources and Explorations on the Second Amendment, edited by Robert J. Cottrol.

Postscript:
On June 26, 2008,
the Supreme Court,
in the 5-4 Heller decision,
affirmed the civil-rights interpretation
of the Second Amendment.